Board’s variance denial had substantial support in the record

by Melanie Thwing

Lauderdale Lakes Lake Management District v. Walworth County
(Wisconsin Court of Appeals, March 16 2011)

Lauderdale Lakes Lake Management District (the District) owns property in Walworth County, WI. This property mainly consists of the Lauderdale Lakes Country Club and 6.8-acres of waterfront wetland area. This wetland is zoned C-4 “Lowland Resource Conservation District.” The original intent in purchasing the property was to prevent further development.  In 2003 the land was put under a perpetual conservation easement.

The District allows a weed-harvesting boat and Water Safety Patrol boats to dock on the property, and allows access by school and scout groups as well as the general public. All of these are permitted uses. The District filed a request for a zoning permit with the Walworth County Land Use and Resource Management Department to expand an existing boardwalk from six to seven feet in width, and to construct a new four foot-wide boardwalk and three decks.  The total project would create over 2,000 additional feet of decking on the property.  Walworth County ORD. Art. III, Div. 2, § 74-167 prohibits structures within seventy-five-feet of the shoreline. The proposed boardwalk would fall within this setback and the Department denied the permit.

The District then filed a petition for a variance with the Zoning Board of Adjustment (the Board). At the public hearing the District explained that the addition of walkways would: (1) help transport fuel without having to drive through the wetlands, (2) promote better public access, (3) promote public safety by easier access to transport injured boaters from the lake, (4) prevent wetland damage from pedestrian and vehicular traffic.  Residents spoke at the hearing both for and against the permit. Ultimately the Board denied the variance request because: (1) no exceptional circumstances were proven, (2) property is a wetland and flood plain, (3) only one four-foot-wide walkway is permitted in the Ordinance, (4) any hardship was self-created, (5) it would affect the entire community, (6) this large of an increment would set a precedent, (7) approving would undermine the zoning ordinance, (8) did not meet necessary criteria, (9) would increase impervious surfaces and runoff. The circuit court affirmed.

The District appealed to the Wisconsin Court of Appeals, who determines whether the Board was within their jurisdiction, used a correct theory of law, whether they acted arbitrarily, and if they made the decision based on sound evidence.

The District first argued the Board exceeded its jurisdiction by making a decision not supported by evidence and one that was outside their expertise. However, both pro and con arguments were considered at the public hearing and after receiving written submissions. The Board acted within its authority.

Next the District argues that the Board misinterpreted and misapplied the law concerning unnecessary hardship. Under  Wis. Stat. § 59.694(7)(c) the legislature has given boards of adjustment discretion to grant variances where zoning regulations would result in “unnecessary hardship not justified by the underlying purposes of the ordinance in question.” But in the ninety-one-page hearing and decision transcript it was clear that the Board considered the setback requirements in relation to the Ordinance’s purpose and intent. It also considered whether the property was unique and a hardship would occur.  This property was not unique when compared to any other C-4 zoning property. The purpose of the zoning is, “to preserve, protect, and enhance the county’s lakes, streams and wetland areas and provides that proper regulation of these areas ‘will serve to maintain and improve water quality, both ground and surface; prevent flood damage; protect wildlife habitat; prohibit the location of structures on soils which are generally not suitable for such use; protect natural watersheds; and protect the water-based recreation resources of the county.’”  Further, the District purchased the property to preserve it, making its claim of hardship self-created by the desire to expand beyond the permitted uses. Adding the board walk would simply increase the number of people trampling through the property and protected land. This would be directly against the intent of the ordinance, which is to protect and preserve wetlands.

Next the District argues that the Board’s decision was arbitrary because it was based on the board members’ objections to the project, not the application of the evidence to the criteria for granting a variance.  The Court pointed out that the written decision from the Board explained and gave numerous reasons for the denial based on the criteria. This argument was rejected.

The Court of Appeals determined that the Board reasonably found that the permit would not be in the best interest of the public and would cause more harm that benefit to the wetland,.

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